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More NLRB Overreach?

The New York Times and Associated Press are reporting that the National Labor Relations Board intends to sue Arizona and South Dakota over state-level labor law reforms. Both states recently adopted constitutional amendments that prohibit unionization other than by secret ballot, as have Utah and South Carolina. The board threatened to file suit against all four states in January. The latest announcement indicates the NLRB is making good on the threat, at least with regard to two of the states. (Perhaps the NLRB figured it need not pick another fight with South Carolina — at least not directly.)

The NLRB maintains that these amendments are preempted by federal labor law, which allows for union recognition by means other than a secret ballot election. Had Congress enacted the “Employee Free Choice Act” (aka “card check”), the NLRB’s case would be open and shut. Indeed, if the various state initiatives were intended as preemptive strikes against card check legislation, they were purely symbolic. Given that the EFCA never passed, however, it is a somewhat closer call, though the board may still have an edge. Insofar as the National Labor Relations Act, as interpreted by the Board and the courts, authorizes the voluntary recognition of unions through means other than a Board-administered secret ballot election, it’s not clear what authority states have to bar such actions. Arizona and South Dakota promise to defend their state laws, however, so we’ll see what arguments they make, and how they stand up in court.